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HomeMy WebLinkAboutResolution BPW 02-01-23-02; Tom Wood Volkswagen, Inc.; ($47,265.25); 1 Department Vehicle; ENGRESOLUTION NO. BPW 02-01-23-02 RESOLUTION OF THE CITY OF CARMEL BOARD OF PUBLIC WORKS AND SAFETY ACKNOWLEDGING AGREEMENT BETWEEN CITY AND VENDOR WHEREAS, pursuant to Indiana Code 36-1-4-7, the City of Carmel, Indiana (“City”), is authorized to enter into contracts; and WHEREAS, pursuant to Indiana Code 36-4-5-3, the City’smayor may enter into contracts on behalf ofthe City; and WHEREAS, pursuant to his authority under Indiana law, the City’smayor, the Honorable James C. Brainard, has caused to be signed the Agreement attached hereto (the “Contract”); and WHEREAS, Mayor Brainard now wishes to present the contract to the City’sBoard of Public Works and Safety for it to be publicly acknowledged, filed in the Clerk’sOffice, and made available to the public for review. NOW, THEREFORE, BE IT RESOLVED by the City of Carmel Board of Public Works and Safety as follows: 1. The foregoing Recitals are incorporated herein by this reference. 2. The receipt of the Contract is hereby acknowledged. 3. The Contract shall be promptly filed in the office of the Clerk and thereafter made available to the public for review. SO RESOLVED this day of , 2023. CITY OF CARMEL, INDIANA By and through its Board of Public Works and Safety BY: James Brainard, Presiding Officer Date: Mary Ann Burke, Member Date: Lori S. Watson, Member Date: ATTEST: Sue Wolfgang, Clerk Date: S:\\EBass\\MyDocuments\\BPW-Resolutions\\2023\\Acknowledge Agreement TomWoodVolkswagen Inc.docx1/23/20233:41PM 1st February DocuSign Envelope ID: DA831258-B752-4D2A-A665-0FAD844E92A8 2/1/2023 2/1/2023 2/1/2023 Not Present TomWoodVolkswagen EngineeringDepartment- 2023 Appropriation#2200044-650.01CapitalLeaseFund; P.O. #108434 ContractNotToExceed $47,265.25 CzTfshfzHsfdivlijobu:;32bn-Kbo34-3134 AGREEMENT FOR PURCHASE OF GOODS THIS AGREEMENT FOR PURCHASE OF GOODS (ÐAgreementÑ) is hereby entered into by and between the City of Carmel, Indiana, acting by and through its Board of Public Works and Safety (ÐCityÑ), and Tom Wood Volkswagenan entity duly authorized to do business in the State of Indiana (ÐVendorÑ). TERMS AND CONDITIONS 1.ACKNOWLEDGMENT, ACCEPTANCE: Vendor acknowledges that it has read and understands this Agreement, and agrees that its execution of same constitutes its acceptance of all of the AgreementÓs terms and conditions. 2.PERFORMANCE: City agrees to purchase the goods (the ÐGoodsÑ) from Vendor using City budget appropriation number 2200 0 44-650.01 Capital Lease funds. Vendor agrees to provide the Goods and to otherwise perform the requirements of this Agreement by applying at all times the highest technical and industry standards. 3.PRICE AND PAYMENT TERMS: 3.1 Vendor estimates that the total price for the Goods to be provided to City hereunder shall be no more than Forty Seven Thousand Two Hundred Sixty Five Dollars and Twenty Five Cents ($47,265.25) (the ÐEstimateÑ). Vendor shall submit an invoice to City no more than once every thirty (30) days detailing the Goods provided to City within such time period. City shall pay Vendor for such Goods within thirty- five (35) days after the date of CityÓs receipt of Vendor's invoice detailing same, so long as and to the extent such Goods are not disputed, are in conformance with the specifications set forth in Exhibit A and Vendor has otherwise performed and satisfied all the terms and conditions of this Agreement. 3.2 Vendor agrees not to provide any Goods to City that would cause the total cost of the Goods provided by Vendor to City hereunder to exceed the Estimate, unless City has previously agreed, in writing, to pay an amount in excess thereof. 4.WARRANTY: Vendor expressly warrants that the Goods covered by this Agreement will conform to those certain specifications, descriptions and/or quotations regarding same as were provided to Vendor by City and/or by Vendor to and accepted by City, all of which documents are incorporated herein by reference, and that the Goods will be delivered in atimely, good and workmanlike manner and free from defect. Vendor acknowledges that it knows of CityÓs intended use and expressly warrants that the Goods provided to City pursuant to this Agreement have been selected by Vendor based upon CityÓs stated use and are fit and sufficient for their particular purpose. 5.TIME AND PERFORMANCE: This Agreement shall become effective as of the last date on which a party hereto executes same (ÐEffective DateÑ), and both parties shall thereafter perform their obligations hereunder in a timely manner. Time is of the essence of this Agreement. 6.DISCLOSURE AND WARNINGS: If requested by City, Vendor shall promptly furnish to City, in such form and detail as City may direct, a list of all chemicals, materials, substances and items used in or during the provision of the Goods provided hereunder, including the quantity, quality and concentration thereof and any other information relating thereto. At the time of the delivery of the Goods provided hereunder, Vendor agrees to furnish to City sufficient written C:\\Users\\lslick.CITYOFCARMEL\\AppData\\Local\\Microsoft\\Windows\\INetCache\\Content.Outlook\\TNTJKXYF\\Tom Wood Volkswagen Agreement_.docx:1/19/2023 2:19 PM\] 1 DocuSign Envelope ID: DA831258-B752-4D2A-A665-0FAD844E92A8 TomWood Volkswagen EngineeringDepartment - 2023 Appropriation # 2200044-650.01CapitalLeaseFund; P.O. #108434 ContractNotToExceed $47,265.25 warning and notice (including appropriate labels on containers and packing) of any hazardous material utilized in or that is apart of the Goods. 7.LIENS: Vendor shall not cause or permit the filing of any lien on any of CityÓs property. In the event any such lien is filed and Vendor fails to remove such lien within ten (10) days after the filing thereof, by payment or bonding, City shall have the right to pay such lien or obtain such bond, all at VendorÓs sole cost and expense. 8.DEFAULT: In the event Vendor: (a) repudiates, breaches or defaults under any of the terms or conditions of this Agreement, including VendorÓs warranties; (b) fails to provide the Goods as specified herein; (c) fails to make progress so as to endanger timely and proper provision of the Goods and does not correct such failure or breach within five (5) business days (or such shorter period of time as is commercially reasonable under the circumstances) after receipt of notice from City specifying such failure or breach; or (d) becomes insolvent, is placed into receivership, makes a general assignment for the benefit of creditors or dissolves, each such event constituting an event of default hereunder, City shall have the right to (1) terminate all or any parts of this Agreement, without liability to Vendor; and (2) exercise all other rights and remedies available to City at law and/or in equity. 9.INSURANCE AND INDEMNIFICATION: Vendor shall procure and maintain in full force and effect during the term of this Agreement, with an insurer licensed to do business in the State of Indiana, such insurance as is necessary for the protection of City and Vendor from all claims for damages under any workersÓ compensation, occupational disease and/or unemployment compensation act; for bodily injuries including, but not limited to, personal injury, sickness, disease or death of or to any of VendorÓs agents, officers, employees, contractors and subcontractors; and, for any injury to or destruction of property, including, but not limited to, any loss of use resulting therefrom. Vendor shall cause its insurers to name City as an additional insured on all such insurance policies, shall promptly provide City, upon request, with copies of all such policies, and shall provide that such insurance policies shall not be canceled without thirty (30) days prior notice to City. Vendor shall indemnify and hold harmless City from and against any and all liabilities, claims, demands or expenses (including, but not limited to, reasonable attorney fees) for injury, death and/or damages to any person or property arising from or in connection with VendorÓs provision of Goods pursuant to or under this Agreement or VendorÓs use of City property. Vendor further agrees to indemnify, defend and hold harmless City and its officers, officials, agents and employees from all claims and suits of whatever type, including, but not limited to, all court costs, attorney fees, and other expenses, caused by any act or omission of Vendor and/or of any of VendorÓs agents, officers, employees, contractors or subcontractors in the performance of this Agreement. These indemnification obligations shall survive the termination of this Agreement. C:\\Users\\lslick.CITYOFCARMEL\\AppData\\Local\\Microsoft\\Windows\\INetCache\\Content.Outlook\\TNTJKXYF\\Tom Wood Volkswagen Agreement_.docx:1/19/2023 2:19 PM\] 2 DocuSign Envelope ID: DA831258-B752-4D2A-A665-0FAD844E92A8 TomWood Volkswage EngineeringDepartment - 2023 Appropriation # 2200044-650.01CapitalLeaseFund; P.O. #108434 ContractNotToExceed $47,265.25 10.GOVERNMENT COMPLIANCE: Vendor agrees to comply with all federal, state and local laws, executive orders, rules, regulations and codes which may be applicable to VendorÓs performance of its obligations under this Agreement, and all relevant provisions thereof are incorporated herein by this reference. Vendor agrees to indemnify and hold harmless City from any loss, damage and/or liability resulting from any such violation of such laws, orders, rules, regulations and codes. This indemnification obligation shall survive the termination of this Agreement. 11.NONDISCRIMINATION: Vendor represents and warrants that it and all of its officers, employees, agents, contractors and subcontractors shall comply with all laws of the United States, the State of Indiana and City prohibiting discrimination against any employee, applicant for employment or other person in the provision of any Goods provided by this Agreement with respect to their hire, tenure, terms, conditions and privileges of employment and any other matter related to their employment or subcontracting, because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status and/or Vietnam era veteran status. 12.NO IMPLIED WAIVER: The failure of either party to require performance by the other of any provision of this Agreement shall not affect the right of such party to require such performance at any time thereafter, nor shall the waiver by any party of abreach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision hereof. 13.NON-ASSIGNMENT: Vendor shall not assign or pledge this Agreement, whether as collateral for aloan or otherwise, and shall not delegate its obligations under this Agreement without CityÓs prior written consent. 14.RELATIONSHIP OF PARTIES: The relationship of the parties hereto shall be as provided for in this Agreement, and neither Vendor nor any of its officers, employees, contractors, subcontractors and agents are employees of City. The contract price set forth herein shall be the full and maximum compensation and monies required of City to be paid to Vendor under or pursuant to this Agreement 15.GOVERNING LAW; LAWSUITS: This Agreement is to be construed in accordance with and governed by the laws of the State of Indiana, except for its conflict of laws provisions. The parties agree that, in the event a lawsuit is filed hereunder, they waive their right to a jury trial, agree to file any such lawsuit in an appropriate court in Hamilton County, Indiana only, and agree that such court isthe appropriate venue for and has jurisdiction over same. 16.SEVERABILITY: If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with same, and the remaining provisions of this Agreement shall remain in full force and effect. 17.NOTICE: Any notice provided for in this Agreement will be sufficient if it is in writing and is delivered by postage prepaid U.S. certified mail, return receipt requested, to the party to be notified at the address specified herein: C:\\Users\\lslick.CITYOFCARMEL\\AppData\\Local\\Microsoft\\Windows\\INetCache\\Content.Outlook\\TNTJKXYF\\Tom Wood Volkswagen Agreement_.docx:1/19/2023 2:19 PM\] 3 DocuSign Envelope ID: DA831258-B752-4D2A-A665-0FAD844E92A8 TomWoodVolkswagen, Inc. EngineeringDepartment - 2023 Appropriation # 2200044-650.01CapitalLeaseFund; P.O. #108434 ContractNotToExceed $47,265.25 If to City: City of Carmel AND City of Carmel Engineering Department Office of Corporation Counsel One Civic Square One Civic Square Carmel, Indiana 46032 Carmel, Indiana 46032 If to Vendor: Tom Wood Volkswagen th4545East96Street Indianapolis, Indiana 46240 Notwithstanding the above, notice of termination under paragraph 19 hereinbelow shall be effective ifgiven orally, as long as written notice is then provided as set forth hereinabove within five (5) business days from the date of such oral notice. 18.TERMINATION: 18.1 Notwithstanding anything to the contrary contained in this Agreement, City may, upon notice to Vendor, immediately terminate this Agreement for cause, in the event of adefault hereunder by Vendor and/or if sufficient funds are not appropriated or encumbered to pay for the Goods to be provided hereunder. In the event of such termination, Vendor shall be entitled to receive only payment for the undisputed invoice amount representing conforming Goods delivered as of the date of termination, except that such payment amount shall not exceed the Estimate amount in effect at the time of termination, unless the parties have previously agreed in writing to a greater amount. 18.2 City may terminate this Agreement at any time upon thirty (30) days prior notice to Vendor. In the event of such termination, Vendor shall be entitled to receive only payment for the undisputed invoice amount of conforming Goods delivered as of the date of termination, except that such payment amount shall not exceed the Estimate amount in effect at the time of termination, unless the parties have previously agreed in writing to agreater amount. 18.3 The City may terminate this Agreement pursuant to Paragraph 11 hereof, as appropriate. 19.REPRESENTATIONS AND WARRANTIES The parties represent and warrant that they are authorized to enter into this Agreement and that the persons executing this Agreement have the authority to bind the party which they represent. 20.ADDITIONAL GOODS Vendor understands and agrees that City may, from time to time, request Vendor to provide additional goods to City. When City desires additional goods from Vendor, the City shall notify Vendor of such additional goods desired, as well as the time frame in which same are to be provided. Only after City has approved VendorÓs time and cost estimate for the provision of such additional goods, has encumbered sufficient monies to pay for same, and has authorized Vendor, in writing, to provide such additional goods, shall such goods be provided by Vendor to City. A copy of the CityÓs authorization documents for the purchase of additional goods shall be numbered and attached hereto in the order in which they are approved by City. 21.HEADINGS All heading and sections of this Agreement are inserted for convenience only and do not form a part of this Agreement nor limit, expand or otherwise alter the meaning of any provision hereof. 22.BINDING EFFECT The parties, and their respective officers, officials, agents, partners, successors, assigns and legal C:\\Users\\lslick.CITYOFCARMEL\\AppData\\Local\\Microsoft\\Windows\\INetCache\\Content.Outlook\\TNTJKXYF\\Tom Wood Volkswagen Agreement_.docx:1/19/2023 2:19 PM\] 4 DocuSign Envelope ID: DA831258-B752-4D2A-A665-0FAD844E92A8 TomWoodVolkswagen EngineeringDepartment - 2023 Appropriation # 2200044-650.01CapitalLeaseFund; P.O. #108434 ContractNotToExceed $47,265.25 representatives, are bound to the other with respect to all of the covenants, terms, warranties and obligations set forth in Agreement. 23.NO THIRD PARTY BENEFICIARIES This Agreement gives no rights or benefits to anyone other than City and Vendor. 24.DEBARMENT AND SUSPENSION 24.1 The Vendor certifies by entering into this Agreement that neither it nor its principals nor any of its subcontractors are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from entering into this Agreement by any federal agency or by any department, agency or political subdivision of the State of Indiana. The term ÐprincipalÑ for purposes of this Agreement means an officer, director, owner, partner, key employee or other person with primary management or supervisory responsibilities, or a person who has a critical influence on or substantive control over the operations of the Vendor. 24.2 The Vendor certifies that it has verified the state and federal suspension and debarment status for all subcontractors receiving funds under this Agreement and shall be solely responsible for any recoupment, penalties or costs that might arise from use of a suspended or debarred subcontractor. The Vendor shall immediately notify the City if any subcontractor becomes debarred or suspended, and shall, at the CityÓs request, take all steps required by the City to terminate its contractual relationship with the subcontractor for work to be performed under this Agreement. 25.IRAN CERTIFICATION Pursuant to I.C. § 5-22-16.5, the Vendor shall certify that, in signing this Agreement, itdoes not engage in investment activities within the Country of Iran. 26.ADVICE OF COUNSEL: The parties warrant that they have read this Agreement and understand it, have had the opportunity to obtain legal advice and assistance of counsel throughout the negotiation of this Agreement, and enter into same freely, voluntarily, and without any duress, undue influence or coercion. 27.ENTIRE AGREEMENT: This Agreement, together with any exhibits attached hereto or referenced herein, constitutes the entire agreement between Vendor and City with respect to the subject matter hereof, and supersedes all prior oral or written representations and agreements regarding same. Notwithstanding any other term or condition set forth herein, but subject to paragraph 16 hereof, to the extent any term or condition contained in any exhibit attached to this Agreement or in any document referenced herein conflicts with any term or condition contained in this Agreement, the term or condition contained in this Agreement shall govern and prevail. This Agreement may only be modified by written amendment executed by both parties hereto, or their successors in interest. 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